{
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  "name": "ANGELA HENKE, Plaintiff-Employee v. FIRST COLONY BUILDERS, INC., Employer; RELIANCE INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Henke v. First Colony Builders, Inc.",
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  "casebody": {
    "judges": [
      "Judges COZORT and MARTIN, Mark D., concur."
    ],
    "parties": [
      "ANGELA HENKE, Plaintiff-Employee v. FIRST COLONY BUILDERS, INC., Employer; RELIANCE INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "TIMMONS-GOODSON, Judge.\nBy opinion and award filed 1 September 1989, plaintiff was awarded ongoing temporary total disability compensation, and subsequently, the Full Commission approved plaintiffs attorney contingent agreement for attorney\u2019s fees of one-third (x/3) of plaintiff\u2019s recovery. Thereafter, defendants made a lump sum temporary total disability payment, including the one-third (x/3) attorney\u2019s fee, but refused to pay ongoing temporary total disability compensation and the attorney\u2019s fees based upon one-third (V3) of that ongoing compensation.\nAfter the Full Commission refused to grant plaintiff any relief regarding the payment of attorney\u2019s fees based on one-third (V3) of her ongoing disability compensation, on 22 June 1995, plaintiff filed a motion to declare section 97-86.2 of the North Carolina General Statutes unconstitutional. This motion was denied by opinion and award of the Full Commission filed 15 April 1996. Plaintiff filed a motion for reconsideration, and the Full Commission filed an amended opinion and award on 29 April 1996, ordering defendants to pay interest to plaintiff pursuant to section 97-86.2, but denying plaintiffs motion to declare that section unconstitutional as it applied to plaintiff\u2019s attorney. This opinion and award was appealed by plaintiff to Mecklenburg County Superior Court; and by order entered 8 July 1996 by Judge Marcus L. Johnson, the Industrial Commission was ordered to enter an appropriate order allowing plaintiff\u2019s attorney one-third (x/3) of all of plaintiff\u2019s future compensation benefits, but again, denying plaintiff\u2019s motion to declare section 97-86.2 of the General Statutes unconstitutional. The Full Commission, thereafter, amended its opinion and award by order entered 16 July 1996 to conform with the order of the superior court. Plaintiff appeals.\nPlaintiff brings forth but one argument on appeal: The Commission committed reversible error in the denial of her motion to declare North Carolina General Statutes section 97-86.2 unconstitutional since the allowance of interest on an award to plaintiff, but not plaintiff\u2019s attorney, is in violation of the Equal Protection Clauses of Article I, Section 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. We decline to address the merits of this case, however, as plaintiff\u2019s appeal must be dismissed for lack of jurisdiction. This Court may ex mero motu dismiss an appeal for lack of subject matter jurisdiction, even if it is not raised by the parties on appeal. Ramsey v. Interstate Insurors, Inc., 89 N.C. App. 98, 102, 365 S.E.2d 172, 175, disc. review denied, 322 N.C. 607, 370 S.E.2d 248 (1988).\nIt is well settled that an appeal may only be taken by an aggrieved real party in interest. Insurance Co. v. Ingram, Comr. of Insurance, 288 N.C. 381, 218 S.E.2d 364 (1975). A \u201cperson aggrieved\u201d is one \u201c \u2018adversely affected in respect of legal rights, or suffering from an infringement or denial of legal rights.\u2019 \u201d State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 104 N.C. App. 216, 218, 408 S.E.2d 876, 877 (1991) (quoting In re Rulemaking Petition of Wheeler, 85 N.C. App. 150, 153, 354 S.E.2d 374, 376 (1987)), disc. review denied, 330 N.C. 618, 412 S.E.2d 95 (1992).\nIn the case sub judice, plaintiff was granted workers\u2019 compensation benefits, as well as attorney\u2019s fees. Plaintiff\u2019s motion to have section 97-86.2 of the North Carolina General Statutes, in its mandate that interest cannot be allowed on an award of attorneys\u2019 fees, declared unconstitutional was, however, denied. Plaintiff fails to show, and we can surmise, no injury to any of plaintiffs legal rights in the Industrial Commission\u2019s denial. Regardless of whether plaintiff\u2019s motion to declare section 97-86.2 unconstitutional is granted or denied, plaintiff recovers both workers\u2019 compensation benefits and attorney\u2019s fees based upon a one-third (V3) contingency agreement. Plaintiff suffers no direct legal injury in the denial of interest payments to her attorney. Whether plaintiff\u2019s attorney receives interest on his fees is of no consequence to plaintiff; her interest is at most incidental herein.\nAs plaintiff is not a person aggrieved in this case, she lacks standing to bring this appeal. Accordingly, this appeal is dismissed.\nDismissed.\nJudges COZORT and MARTIN, Mark D., concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Richard F. Harris, III for plaintiff-appellant.",
      "Caudle & Spears, RA., by Sean M. Phelan and Lloyd C. Caudle, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "ANGELA HENKE, Plaintiff-Employee v. FIRST COLONY BUILDERS, INC., Employer; RELIANCE INSURANCE COMPANY, Carrier, Defendants\nNo. COA96-1093\n(Filed 1 July 1997)\nWorkers\u2019 Compensation \u00a7 304 (NCI4th)\u2014 interest on award\u2014 not paid on attorney fees \u2014 constitutional challenge\u2014 standing of compensation claimant\nAn appeal from the Industrial Commission was dismissed for lack of jurisdiction where plaintiff was awarded disability compensation with attorney fees; after a further dispute over a portion of the award, the Commission ordered that defendants pay interest to plaintiff; and the Commission denied plaintiffs motion to declare N.C.G.S. \u00a7 97-86.2 unconstitutional on the grounds that allowing interest to plaintiff but not to plaintiffs attorney is a violation of Equal Protection. An appeal may be taken only by the real party in interest; plaintiff here recovers both workers\u2019 compensation benefits and attorney fees and suffers no direct legal injury in the denial of interest payments to her attorney. As plaintiff was not a person aggrieved, she lacked standing.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 640.\nAppeal by plaintiff from order entered 16 July 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 13 May 1997.\nRichard F. Harris, III for plaintiff-appellant.\nCaudle & Spears, RA., by Sean M. Phelan and Lloyd C. Caudle, for defendant-appellee."
  },
  "file_name": "0703-01",
  "first_page_order": 741,
  "last_page_order": 743
}